HKSAR v. Ngai Ha (also known as So Yuen Chu)

DCCC 1145/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1145 OF 2013

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Reasons for Verdict

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1.The defendant faces one count of trafficking in dangerous drugs contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.

2.The particulars are that the defendant on 4 August 2013 at a karaoke nightclub in Yau Ma Tei unlawfully trafficked 8.2 grammes of cocaine and 3.21 grammes of “Ice”.

3.The prosecution say the police found the drugs in the defendant’s handbag during a search.  This is not disputed by the defence, but what is in issue is whether or not she knew the drugs were in her handbag.

4.The defence case is that she had no knowledge of the drugs found and they were not in her possession or under her control.

Prosecution case

5.The police raided a karaoke nightclub on the 1st Floor of 431-437 Shanghai Street, Yau Ma Tei, Kowloon at 11.55 pm on 3 August 2013.  They were conducting a licence check but also had obtained a search warrant due to suspected drug-trafficking activity in the premises. The police say the defendant was sat inside the bar area in the open lounge when they arrived.

6.A sketch of the premises is exhibited as P9 and photographs, P15 and Exhibit D2.

7.During the licence check all staff members were asked to produce their identity cards.

8.The defendant was a supervisor and described as a “mama-san”.  She did not have her identity card on her person.  She first took two officers, PW1 and PW2, to her two staff lockers.  They could not find it.  They asked her again for her ID card and she led them to her handbag left inside the bar area.  She took her handbag, which was placed between a fish tank and a safe, and PW1, PC 8080, searched it.  He found her identity card in her wallet.

9.He then saw a bag he suspected contained dangerous drugs.  It was a blue resealable plastic bag, Exhibit P3, containing 24 smaller plastic resealable bags.  These contained cocaine and “Ice”.

10.PW2, Officer PC 9000, was with PW1 when he searched the defendant’s bag, Exhibit P4.

11.PW1 declared an arrest for trafficking in dangerous drugs when he saw the bag containing suspected dangerous drugs.  He cautioned her and she replied, “Ah Sir, I am unhappy recently, that is why I bought “Coke” and “Ice” for consumption.  Please give me a chance.”  In essence, she admitted possession for self-consumption.  He made a note of this in his notebook, Exhibit P17 and 17A.

12.PW1, PW2 and WPC 10652, PW4, took the defendant to a room in a nightclub, Room 15, with all the suspected dangerous drugs at about 0057 am.  There he proceeded to count the bags of dangerous drugs and made a post-recorded statement of her admission made under caution in P17 and 17A, his notebook.

13.Prior to this, he served a POL 153, a Notice to Persons in Custody, Exhibit P10, on the defendant.  After the statement, the defendant wrote a declaration copying it from Exhibit P11, which she also signed.  When the operation concluded they all left the bar at about 2.50 am for the police station.

14.At 5.11 am, PW1 signed the defendant out from the Duty Officer for the purposes of making a video recorded interview.  It was an 18 minute interview and exhibited at P12A, B and C, and conducted in Punti.

15.In P12, the defendant explains her verbal admission meant she had the drugs for her own consumption.  She said she put the cocaine in cigarettes and smoked it and the “Ice” through an “Ice” bottle. She took dangerous drugs twice a day.  She said she bought the drugs from someone called “Ah B” that evening for $500 to $600.  It was the first time she bought dangerous drugs from him.  When asked, she said she did not know why the drugs were packed in small resealable plastic bags.

16.She had worked at the nightclub for a year and earned $11,000 a month.  Her hours were 9 pm to 6 am.  She said the $3,617 found in her bag and two mobile phones belonged to her.

17.A house search later that morning found nothing suspicious.

18.The Admitted Facts are P16, relating mainly to the dangerous drugs found.

Defence case

19.The defence challenged the verbal admission and alleged PW1 fabricated it.  He did not arrest or caution her for trafficking in dangerous drugs.  She was told that the drugs were found in her bag and she had no knowledge of those drugs.  She had left her bag on a table at 9.30 pm unattended.

20.The defendant alleged she was threatened, induced and oppressed by the police.  PW1 said he was also a Mainlander, spoke her language and would help her if she cooperated with him.  PW2 and PW4 did once come in to Room 15, scolding and swearing at her.  She signed the post-recorded statement without knowing its contents.

21.PW1 then later coached her, whilst she was in the custody of the Duty Officer, as to how to answer questions he would put to her later.  Before the video recorded interview commenced, PW2 assaulted her once, slapping her shoulder from behind.  PW1 also reminded her as to the answers she was to give him.  None of it was voluntary.

22.The objections from the defence was set out in Exhibit D1.  I repeat, the defence case is that she had no idea where the drugs came from that were found in her handbag.  They must have been planted there when her bag was left unattended.  Possession and knowledge were denied.

The Evidence

23.Voluntariness was challenged and dealt with by way of the alternative procedure.

24.PW1 was the arresting officer and statement-taker. He gave evidence of the procedure he adopted after he found drugs in a compartment inside the defendant’s handbag.  He described the arrest, caution and the defendant’s response.  He immediately made a note of her words in his notebook at page 64, of P17, at the entry for 0054 am.  He did this to assist his own memory and ensure accuracy.

25.In Room 15, he counted the drugs and then handed them to PW2, the designated Exhibits Officer.

26.He served a POL 153 on the defendant and after she signed, he wrote a post-recorded statement in his notebook.  She signed and wrote out a declaration confirming she had read it and it was accurate, it was made of her own free will.  She copied this from P11 and also signed P11.

27.He denies he induced threatened and oppressed her.  He did not speak to her in Mandarin, nor offer to help her as a fellow Mainlander.

28.Later, at the station, but before the video recorded interview, he denied he visited her whilst in the Duty Officer’s custody.  Nor did he know that a lawyer had visited her, but left.  He denied coaching her answers that he would require during the video recorded interview. He denied that she was tired at 5 am and that he had conducted the video recorded interview then to sap her will.  The video recorded interview was watched by all in open court.

29.He also denied that she had ever protested her innocence or lack of knowledge of the drugs found in her handbag.

30.She maintained her explanation that it was bought by her for her own consumption as she was unhappy.

31.PW2 was the Exhibits Officer and he assisted PW1 to search the defendant’s lockers as she said her identity card was placed in there.  He then followed the defendant and PW1 to her handbag inside the bar area.  He witnesses PW1 search the bag and first find the identity card.  He then saw PW1 find a blue bag filled with dangerous drugs.  He heard PW1 immediately arrest the defendant for trafficking in dangerous drugs and caution her.

32.He describes then going to Room 15 to deal with the drugs.  After PW1 had counted 24 small bags in the one bag, he gave the dangerous drugs to PW2, as the Exhibits Officer.  He then left the room, dealt with photographing exhibits and the scene, as well as drawing sketches.

33.He denied swearing at the defendant at the scene. He also denied slapping her across the shoulder before the video recorded interview at the police station.

34.He was asked in cross-examination if the defendant looked surprised when PW1 pulled out the bag of dangerous drugs from her handbag.  He said, “No,” and that she instead “looked scared”.

35.PW3 was the cashier of the club, who was present during the police raid and licence check.  Her post was to sit behind the bar. She said the area was a staff only area.  She recalls the defendant arriving for work at 9.30 pm, putting down her bag and going to deal with some clients at a table.  She later saw the defendant retrieve her bag from the side of the fish tank to get her identity card for the police.  She said during the course of the evening the defendant did sit next to her inside the bar, but could not recall if she was sat there when the police arrived.

36.She described how she switched on all the lights of the premises when the police arrived.  People would be ordered to stay still whilst the police carried out their duties.  People would not move around.  She saw the police find the dangerous drugs in the defendant’s bag and then said the defendant was arrested.

37.She was adamant in cross-examination that the bag was retrieved from a gap between the fish tank and the safe, as depicted in photographs 4 and 5 of P15.  That area was directly behind her seat and she had been sat there all evening.  She said that after the police arrived, but before the handbag was searched, no staff member or customer came into her area behind the bar.  It was put to her, and she denied, that she held any grudge against the defendant.

38.PW4 was WPC 10652.  She was tendered for cross-examination.  She denied she scolded and swore at the defendant with PW2, PC 9000, in Room 15 of the premises.

39.The defendant elected to give evidence in the special issue.

40.She came to Hong Kong six years ago and has worked as a “mama-san” for three years.  She worked at the target premises for one year before her arrest.

41.On that evening she arrived at work at 9.30 and put her zipped up handbag on the wooden folding table, seen in photograph 4 of Exhibit P15, inside the bar area.  She did not put it in one of her two available staff lockers as there was nothing valuable in it, only a bit of money.

42.Police later found $3,617 in it. We have heard that her salary was $11,000 a month. Also, her working hours was 9 pm to 6 am each evening.  Obviously, she was accustomed to being up all night.

43.When the police arrived, she said she was not sat behind the bar, but in Room 11 playing games with some clients.  Lights flashed in the room to warn everyone the police had arrived.  She went out of Room 11 and saw the police.

44.She went to the bar and, standing on the customer side of it, asked a colleague to get her work staff card from a drawer.

45.Later, she was subject to a body search in a room, like all staff members.  The police asked her for her identity card and she said it was in her locker.  She then recalled that it was in her handbag in the bar.  She said the police took her bag off the table and poured out its contents.  She had asked why the zip was open.

46.The police found a bag of dangerous drugs and asked her if this was hers.  She replied that the packet of stuff was not hers, she had not seen it before.  Her evidence was that when she arrived at work she did not have any drugs in her bag; she had no idea who put it there.  She never admitted to PW1 that she had bought the dangerous drugs for herself.

47.She then described how PW1 threatened her with years in prison so it was best she cooperate.  He said that she had to admit the dangerous drugs belonged to her.  If she cooperated he would help mitigate to the court.  He said he would write something in her favour and would help her as he also came from the Mainland.  He would help her get a fine or a bind over.  He told her no one would believe the drugs in her bag did not belong to her.

48.She said PW2 and PW4 then came in and shouted at her, swearing at her.  Both said she had to admit the dangerous drugs belonged to her.

49.Afterwards PW1 wrote something in his notebook. She thought it was mitigation for the court and signed where he told her to sign.  She did copy out a declaration into the notebook, but did not read it as she wrote.  He told her to read the notebook, but she did not.  She was scared at the time.

50.At the station, she was put in a room with wire mesh or netting for a window.  A lawyer came to see her, who had been arranged by her employer.  She told him that she did not need his help because PW1 had told her he would help her.  She sent the lawyer away because she believed PW1, but in the same breath she said she was scared he would deceive her.  She did not tell the lawyer she had been induced, threatened and forced to admit possession of the dangerous drugs.

51.After the lawyer left, PW1 spoke to her through the netting or mesh for two to three minutes.  He coached her as to what to say in subsequent video recorded interview.  Such answers as she inhaled the “Ice” with an “Ice” bottle and smoked cocaine in cigarettes.

52.On the way to the video recorded interview room he coached her some more.  For example, where and from whom did she buy the dangerous drugs from.  She said PW2 slapped her across the back.  She describes herself as very tired and scared of the police, but not PW1.

53.It was put to her that her $3,617 in her handbag was a significant amount, a third of her monthly salary, and so she should have kept her handbag in her locker.  She said her bag was safe at the bar and the staff did not steal from each other rather than because it had little value in it.

54.It was put to her she should have trusted a lawyer sent to help her more than PW1.  She answered she thought only PW1 could help her.  This was despite it was PW1 who had arrested her for drugs offence.

55.I did ask the defendant why, as a “mama-san” in a profession which is very wary of the police, after all they had lights installed to forewarn all in the club and rooms that police were coming, why did she trust or believe PW1 so readily?  She said she did not know how to answer that.

56.When asked if PW1 had coached all the answers she gave, she said, “No”.  When specifically asked if he had taught her to say the drugs were bought for $500 or $600, she said, “No,” she had made that up herself. Having watched the video, she did not hesitate with this answer, nor was there any part where she seemed to hesitate, act evasively or seemed confused.  It did appear as if she was crying when the video recorded interview finished.

The Alternative Procedure

57.The prosecution has a duty to prove beyond reasonable doubt that if she did respond under caution she responded voluntarily and prove the post-recorded statement and the video recorded interview were given or made voluntarily.

58.The prosecution submit if the officer, PW1, did fabricate her verbal admission, why just frame her for possession for self-consumption? Why not frame her for trafficking in dangerous drugs?  After all, they were in a nightclub with customers; the drugs were in small bags clearly suitable to sell for consumption.

59.The prosecution submit it was not likely PW1 coached her through a net, whilst the defendant was in the custody of the Duty Officer in the report room area.  It was not credible that he would do that there and in a few minutes only.

60.It was submitted the defendant’s evidence was confusing, contradictory and nonsensical; whereas the police officers were not shaken in cross-examination, and supported each other without a hint of collusion or impropriety.

61.The defence submit there were many disturbing features in the police officers’ evidence.  It was suggested the police, having found dangerous drugs in her bag, did not bother to investigate her claims of innocence.  They framed her to make it a simple case without much further ado. They acted suspiciously, unfairly to the defendant with impropriety and highhandedness.  This was a case where credibility of witnesses alone was the issue.

62.As I said in my ruling during the trial on the special issue, what must be determined in relation to each of the records and the reconstruction of events is a question of voluntariness.

63.If the prosecution can prove beyond reasonable doubt on the whole of the evidence that the records and interviews were voluntary, they are admissible.  If not, they are inadmissible.  If the circumstances in which they were made were oppressive, they must be regarded as having been made involuntarily.  There is also a further safeguard that a record of voluntary interview may still be excluded if it was obtained by unfairness or trickery.  Here, there is an irreconcilable conflict of evidence between the police officers and the defendant turning on credibility alone.

64.There are no principles of law in issue, nor any circumstances where discretion should be considered and exercised.  The only question is which version of events or evidence I believed.

65.Having carefully considered the evidence of all witnesses, and the submissions made, I did not believe the defendant’s evidence.  I found it hard to reconcile her evidence.  In particular that she was scared of PW1; trusted him to help her, but feared he would deceive her at the same time.  When seeing a lawyer she did not tell him or her of the inducements or threats she had encountered, which beggars belief.

66.It is clear from all the witnesses that the police found the drugs in the defendant’s handbag behind the bar only after insisting she produce her identity card.  PW3, the cashier, and the defendant’s evidence supports this.  I do not believe when that happened PW1 then decided to frame her.  Her answer, under caution, has a ring of truth to it.  She could not deny they were in her bag, but could try to mitigate the situation by explaining she had bought them for her own consumption because she had been unhappy.

67.Her evidence of PW1 coaching her at the station and promising to help her get a fine or a bind over because he was a fellow Mainlander is not believable or likely.  Her version was unworthy of credit. Despite this finding, the prosecution must still prove a voluntariness beyond reasonable doubt.

68.I did believe and accept the police officers’ as well as PW3’s evidence as truthful and reliable.  There were no discrepancies so material that I did not accept their evidence or doubt it.

69.In the circumstances, after carefully considering all of the evidence relating to the manner and circumstances in which those interviews were conducted, including the allegations made by and the evidence of the defendant, I was satisfied as to the voluntary nature of each of them and further satisfied that there were no grounds upon which I should exercise my discretion to exclude any records.  I was sure that the defendant did make a verbal admission under caution and it was voluntary.  I am sure it was accurately and fairly recorded in the post-recorded statement, P17.

70.P10, P11, P12 and P17 were admitted into evidence as a result of my ruling after the special issue.

71.The prosecution called no further witnesses for the general issue.

72.Defendant elected not to give evidence after the close of the prosecution case, which is her right, but did call one defence witness.  Miss Wu Yuen-ling, worked at the nightclub with the defendant.  She normally sat at the bar, not inside but outside, facing inside the bar.  She was working on 3 August when the police arrived.  She did not notice the defendant inside the bar area when the police arrived.  When asked, she said she knew of no instances where belongings were stolen by other staff members.

73.She described how everybody stood or sat still when the police arrived and lights were turned on.  That was the extent of her evidence that was material.

My Findings

74.I had to be sure the prosecution can prove beyond reasonable doubt the defendant was trafficking the quantity of dangerous drugs found in her bag.  Did she know the drugs were in her bag?  I am sure the prosecution can rely on her admission and subsequent video recorded interview to prove that she did know there were dangerous drugs in her bag.

75.She gave an account of how they came to be in her bag and why.  I reject the defence that someone must have put them in her bag after she arrived at work.  I believe she admitted possession for her own consumption, but there is no admission for trafficking.  There is no direct evidence the drugs were intended for trafficking.  Therefore, it is necessary to examine not just the primary evidence, but also such reasonable inferences, if any, that can be drawn.

76.Surrounding circumstances and other factors have to be considered.  These can include the time of the day; the quantity and value of the drugs involved; the packaging of the drugs; and the location where the defendant possessed the drugs.  This is not a case where drugs were found at an accused’s home, or where an accused is on his way home with a quantity of drugs on his person when stopped by the police.

77.Defence counsel submits even if the court believes the defendant was in possession of the drugs with knowledge, she was not in possession for the purposes of or with the intent to traffic the drugs. She highlights the fact that although there are 24 small packets of drugs in one bigger packet, that is not enough to infer trafficking per se.

78.However, having considered the evidence, I am sure the defendant did not possess the dangerous drugs for her own consumption. Nothing supports that possibility.  Having considered the quantity of drugs being significant and the value being over $16,800, as well as the fact they were packaged in 24 small packets, I find this in itself a clear indication of a trafficking purpose.  In addition, the drugs were in a nightclub with private rooms and a steady supply of customers who may also be interested in buying drugs for further entertainment.

79.I note nothing to do with drugs was found in the defendant’s home, but the drugs were already packed in smaller bags when found.  That fact is neither here nor there.

80.I am sure the prosecution can prove beyond reasonable doubt that the defendant unlawfully trafficked in the cocaine and “Ice” found in her handbag.  Accordingly, the defendant is convicted as charged.